Self-Serving Justice

Economy contributes to increasing pro se court cases

In August 2009, Inara Cedrins walked into St. Elizabeth Shelter. Four months later, she left so dissatisfied that she filed a lawsuit. The suit, filed in March of this year, charges St. Elizabeth with not adequately helping Cedrins: Her first caseworker “did nothing whatsoever to help Plaintiff.” Her second “did nothing to assist her.” A director of the facility told her that they “would not give Plaintiff any financial assistance” to go to law school, which Cedrins says she was trying to do. She sued them for “intentional infliction of emotional distress.”

The suit’s wording is emotional, the allegations hard to prove, the execution amateur; even the underlined word is a font faux pas. To lawyers, it has all the markings of a pro se case.

Pro se cases—Latin for “for self”— is the term used to designate cases in which litigants represent themselves, including defendants who are sued and have no lawyer. These cases are, by all accounts, a growing problem in New Mexico courts.

According to figures obtained from the 1st Judicial District Court, there were 2,098 pro se cases filed between January and October of this year, although accurate figures for previous years are not available. But requests to the court’s Self Help Center, which provides forms for pro se litigants, provide some indication of an upward trend: In 2008 (complete numbers for 2009 were unavailable), the center responded to 1,113 requests for forms; between just January and July of this year, it had already responded to 915. Even that figure, Court Constituent Services Director Celia Ludi says, is a fraction of the actual number of pro se litigants in the courts.

“It continues to grow,” 1st Judicial District Judge Sarah Singleton says. “It slows down the system in a lot of ways. People who are self-represented don’t know when something is appropriately raised, so they might file a lot of motions that, if lawyers were involved, would never come in front of the court; the two lawyers would just deal with it in telephone calls. Also, they spend a lot of time arguing in court about things that aren’t germane to the issue in front of the court. It’s really an inefficient system.”

It wasn’t always like this: Up until the 1980s, “virtually every judge would not permit someone to represent themselves, or they would make it extremely difficult,” according to John Arango, chairman of the Civil Legal Services Commission, which distributes federal money for civil legal aid.

“Starting in California, more and more people started showing up and said, ‘I’m going to represent myself anyway.’ So it sort of spread from California east, to Arizona, then New Mexico, then Texas,” he says. Essentially, Arango says, a deluge of family law cases—divorces and custody battles, for example—forced judges to change their restrictions, and a new attitude was adopted by the courts that allowed litigants to represent themselves.

Those changes opened the door for pro se litigants, such as Cedrins, in areas outside family legal matters.

Most pro se cases, however, aren’t quite as prosecutorial as Cedrins’. The bulk of current pro se cases tend to emanate from the housing collapse and recession, Ludi says. But, regardless of the type of dispute, most pro se litigants, those in the court say, are like Cedrins: too poor to afford a lawyer, and not legally savvy enough to audit their own cases for viability and subsequently move them through the courts.

Cedrins, reached by email in Chicago, says she was homeless at the time she entered St. Elizabeth, and is still homeless. In her suit, she alleges that, after being mentioned in a Journal Santa Fe article on St. Elizabeth, the shelter “diverted any funds offered as sponsorship for plaintiff” for her to attend law school. When asked by SFR how she knows that St. Elizabeth stole her money, Cedrins writes, “I don’t know that they didn’t siphon money, they gave me none.”

“Basically, our system has a bias towards being open to people and letting them file their claims even if those claims are without merit,” Singleton says.

Even Michael Brennan, St. Elizabeth’s attorney, agrees.

“It’s sort of embedded in our culture and Constitution that, if there are disputes, you have a right to trial,” Brennan says. “So the bar is high for getting things dismissed, and you have to go through these steps. I’m usually on the defense side, but I think it’s probably important that it’s not easy to get cases dismissed.”

Cedrins’ case, he adds, has “little or no merit.”

The 1st Judicial District has a few resources for those who might otherwise go the pro se route. It organizes the once-a-month Family Law Clinic at Santa Fe Community College, at which the lawyer-less can learn some of the nuances of family law and speak privately with a lawyer for half an hour. And various organizations such as the State Bar of New Mexico pool together pro bono lawyers. (Legally, the court can’t solicit pro bono attorneys itself.)

Nonetheless, the outreach is clearly not enough to keep all pro se litigants from filing. Furthermore, even if a pro se litigant such as Cedrins had wanted assistance, it’s not clear that it would have been available. According to a 2009 American Bar Association pro bono behavior study, convincing lawyers to take on pro bono work is challenging, especially if a positive outcome isn’t likely to include monetary benefits. In Santa Fe’s judicial district, for example, only 35 out of 1,110 lawyers participate in the State Bar of New Mexico’s Access to Justice program, which provides legal assistance to those of limited means.

As for the court’s Self Help Center, its forms are intended to make it easier to file a grievance or respond to one. But the workers at the center, Ludi says, are prohibited from giving out legal advice. This leaves, for example, foreclosed defendants to figure out their legal options for themselves. Consider the case of Joseph Arellano, who defaulted on his Jemez Road home and was sued by US Bank for $300,000. Arellano didn’t reply to any summonses or complaints, and US Bank could not locate him after he received the complaint. The bank put out a notice for him in The Santa Fe New Mexican, to which he also didn’t respond. The judge ruled in favor of the bank, and the bank put Arellano’s house up for auction.

Arellano’s case illustrates another reality in pro se litigation: A defendant without counsel has the cards stacked against him.

“It’s like playing a chess game and you don’t even know the rules,” Singleton says. “You kind of know how to move the pieces, but you don’t know the rules of the game, and you’re up against someone who’s been playing for years.”